Justice Isa sees SC in breach of Constitution

In letter CJ, senior puisne judge says keeping top court below its sanctioned strength indefinitely violation of law

ISLAMABAD:

Justice Qazi Faez Isa, the senior puisne judge of the Supreme Court, has said that if the top court “is kept below its sanctioned strength indefinitely and for no good reason, then it does not conform with the Constitution and law”.

Against the sanctioned strength of 17 judges, the top court is currently functioning with 15 judges, including Chief Justice of Pakistan Umar Ata Bandial.

“If the Supreme Court is kept below its sanctioned strength indefinitely, and for no good reason, it, in my opinion, does not conform with the Constitution and the law," the judge wrote in a letter to all members of the Judicial Commission of Pakistan (JCP) which is a constitutional body regarding the appointment of superior courts judges.

"There continue to exist two vacancies of judges in the Supreme Court, since July 13, 2022 and August 13, 2022, respectively, when Justice Mazhar Alam Khan Miankhel and Justice Sajjad Ali Shah [got] retired, that is, for a combined period of about nineteen months."

He letter reads: “Article 176 defines the constitution of Supreme Court to be the chief justice of Pakistan and so many other judges as may be determined by an Act of Parliament.

“Section 2 of the Supreme Court (Number of Judges) Act, 1997 stipulates that the number of other judges ‘shall be sixteen’.”

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Justice Isa in his letter says that presently there are about 53,000 cases pending in the Supreme Court; less than nine years ago there were about half this number. "The interest of the people has been undermined because the Supreme Court may reach the point when it is no longer able to attend to the amassed cases. I have been requesting that judges be appointed when vacancies occur. In a little over a month the Supreme Court will be on summer vacations.

"These vacancies should be filled before the vacations to ensure participation of all Members in the proposed meeting of the Judicial Commission.

"Cognisant of my constitutional duty I would like to propose for your kind consideration to appoint Justice Ahmed Ali M Shaikh and Justice Musarrat Hilali as the judges of the Supreme Court. Justice Shaikh is the chief Justice of the Sindh High Court and Justice Musarrat Hilali was unanimously approved by the Judicial Commission to be appointed as chief justice of the Peshawar High Court.

"The people of Sindh were dismayed when their chief justice was not appointed to the Supreme Court and the people of Khyber-Pakhtunkhwa remain concerned that there is only one Judge from their province in the Supreme Court. The Constitution mandates equality of citizens and forbids discrimination on the basis of sex and it also stipulates that there should be no discrimination on the ground of race, residence and place of birth.”

Justice Isa also addressed Chief Justice of Pakistan Umar Ata Bandial staying that "Hon'ble Chairman, I look forward to your calling a meeting of the Judicial Commission at the earliest because both the said Hon'ble judges will retire in a few months."